Mandatory sentences transfer, but do not eliminate, discretion.
Despite notable comments from the Alberta Court of Appeal last week, that’s the view of some people on the defence side of the criminal law bar as well as those opposed to the idea of trying to crack down on wrongdoing through harsh sentencing regimes.
They include Marc Mauer, executive director of the U.S. organization the Sentencing Project, who made the comment about discretion before Canada’s standing committee on legal and constitutional affairs.
Mauer, of course, can speak based on his country’s long experience with sometimes-harsh mandatory minimum sentences.
As he noted in his testimony, a perhaps good example of problematic results was the case of a 24-year-old music producer with no prior convictions who received a 55-year sentence for three related marijuana sales of about $350 each.
As he possessed a weapon during the sales, the court had to give the man consecutive penalties despite the fact he didn’t use or threaten to use the weapon.
Here in Canada, lawyers are getting used to the idea of a rash of laws that remove judicial discretion by imposing mandatory minimums or, in the case of several serious personal injury offences, precluding the use of conditional sentences.
Sentencing floors have been around for a long time, but with the federal government’s crackdown on crime, defence lawyers are facing new challenges in achieving what they would argue is the fair and just result for their clients.
Nevertheless, many counsel still feel there are options on the lines of the argument advanced by Mauer, namely that new laws simply transfer discretion.
In Canada’s case, they believe the wiggle room rests with the Crown in terms of how prosecutors decide to advance their case.
At the recent Criminal Lawyers’ Association conference in Toronto, Paola Konge, a Hamilton, Ont., defence counsel, outlined some of the areas for challenging or influencing Crowns’ decisions.
“Of course, what charges a defendant faces, how the Crown will proceed, and what the Crown will accept pleas to is the subject of Crown discretion,” she wrote in a paper accompanying the session on mandatory minimums.
“If a client is charged with an offence that carries a mandatory minimum sentence, an important part of the representation will probably be negotiating with the Crown. Capitalize on the weaknesses of the case and be creative in order to avoid mandatory minimum sentences.”
A key issue within the Crown’s purview is whether to proceed by either summary conviction or indictment.
“The difference can be stark; for example, a conviction for possession of a loaded, restricted or prohibited firearm (s. 95) does not carry a minimum sentence when the Crown proceeds summarily but attracts a three-year minimum sentence when the Crown proceeds by indictment,” Konge wrote.
“The Crown’s election is therefore particularly important in these cases and effort should be directed to persuading the Crown as to the mode of election based on the applicable principles.”
Other options for defence lawyers include negotiating, through plea bargain discussions, for conviction to a lesser offence for which a mandatory minimum sentence doesn’t apply.
As well, counsel can attempt to challenge what they consider to be harsh sentences based on a number of grounds under the Charter of Rights and Freedoms: s. 12 dealing with cruel and unusual punishment; s. 7 related to the right to liberty and the principles of fundamental justice; and s. 9 on the right not to be arbitrarily detained or imprisoned.
But as Jeffrey Levy, an assistant Crown attorney with the Ministry of the Attorney General’s guns and gangs initiative, pointed out at the CLA conference, defence lawyers will have to work pretty hard to convince prosecutors to exercise that discretion in their favour.
He noted that in two areas he has knowledge of, guns and gangs and certain sexual assault cases, the ministry’s policy is that when there’s a reasonable prospect of conviction, assistant Crowns must not reduce or withdraw the charge unless “exceptional circumstances” apply. Even then, they have to get permission of their Crown attorney, he said.
As a result, if someone is facing a handful of charges related to a gun, the Crown can’t withdraw the one with a mandatory minimum.
At the same time, despite the fact that both summary conviction or indictment are available with certain firearms offences, the Ontario government’s policy is to proceed by indictment absent, once again, exceptional circumstances.
So for defence lawyers, that means they need to be particularly well-prepared to make their case during meetings with the Crown, Levy said.
In fact, Levy said he has yet to be involved in a case in which he has reduced the charges. But he noted that one matter Konge’s firm took on had the makings of a viable argument for proceeding in a manner more favourable to the defence.
According to Konge, the case began with a domestic dispute that resulted in a fight between a man and his wife’s new boyfriend. When the accused returned home, police arrived there to look for a knife.
But after securing a consent search, officers came across a firearm as they looked through his possessions, resulting in a weapons charge against the man.
It turned out, however, that he had inherited a car containing the weapon from a relative in Florida and wasn’t aware of it when he got the vehicle. In response, the Crown agreed not to pursue the mandatory minimum sentence, Konge notes.
But the bottom line, according to Levy, is that defence lawyers have fewer options, something Konge says she accepts. “I think at the end of the day, we’ll be setting more trial dates,” she says. “I think that’s indisputable.”
“There’s no downside to the client at that point,” she adds.
In addition, Crowns face guidelines on what to do once someone is convicted of an offence with a mandatory minimum.
According to Levy, the policy is to follow the Supreme Court of Canada’s line of thinking in R. v. Morrisey, in which former justice Louise Arbour called mandatory minimums an “inflationary floor” available in most cases only to the least serious offender.
That means, Levy said, that Crowns will likely seek a sentence beyond the minimum depending on the circumstances.
A key question, however, involves the degree to which the courts have the opportunity to review Crowns’ exercise of their discretion.
But as Konge pointed out in her paper, the courts have so far largely shied away from aggressive intervention on that question. Still, she referred to a few cases that have “led some to believe that perhaps the door is not shut as firmly as thought.”
On those questions, however, Ontario judges have tended to rule that they have little leeway. As Justice Michael Harpur of the Ontario Court of Justice noted last month in R. v. Schwartz, “the matter is out of my hands” on the issue of reducing a defendant’s sentence despite his view that the mandatory minimum “was a less suitable sentence than imprisonment within the intermittent range.”
The matter involved Randy Schwartz’ conviction for driving with a blood alcohol concentration of 120 milligrams of alcohol per 100 millilitres of blood.
He had other convictions related to similar offences dating back almost 20 years, which gave the Crown the opportunity to seek a minimum punishment of 120 days in jail rather than the intermittent penalty of 30 to 60 days the defence was proposing.
Given the passage of time since those prior convictions and the fact that Schwartz would lose his job and his home by going to jail, his counsel, Richard Aitken, challenged the Crown’s actions based on Charter arguments.
But in his ruling, Harpur rejected Aitken’s argument that a Crown’s decision to seek an increased penalty based on prior convictions is a non-core prosecutorial function that’s subject to review on a standard of reasonableness.
“To so hold is to place the court in the untenable position of second-guessing prosecutors in the making of decisions properly falling within their powers, a supervisory role said by both the Krieger [v. Law Society of Alberta] and [R. v.] Power decisions to be ‘beyond the legitimate reach of the court.’”
As a result, Harpur said he had no choice but to impose the minimum given that Schwartz “has not established flagrant impropriety or abuse of process by the Crown in its decision to give notice, nor of cruel and unusual punishment in the result.”
So there doesn’t appear to be much lawyers can do in such cases. Of course, the same reasoning applies in other areas where the government has cracked down, including its bid to restrict conditional sentences.
In a case this year, R. v. Bankay, the Ontario Court of Appeal varied the sentence handed down by Justice June Maresca of the Ontario Court of Justice after a woman pleaded guilty to aggravated assault.
Maresca, the appeal court ruled, imposed “what amounted to a disguised conditional sentence” by granting a probation order with a term of six months of house arrest.
“It was an error of law to impose a sentence that circumvented Parliament’s decision to exclude conditional sentences for this offence,” the appeal court ruled.
As a result, people like Konge say they may have to take a longer view to get the types of dispositions they believe are just.
“I think the bottom line is if we want to see changes to mandatory minimum legislation, we all need to become members of a political party that will make that happen.”
Changing the political climate is something Mauer hopes will happen sooner rather than later.
“It is long past time to restore a better balance of the use of discretion within the criminal justice system as a means of producing more constructive sentencing outcomes,” he wrote in a submission to the parliamentary committee that noted the problems he sees with the U.S. approach to criminal justice.
“I hope that the experience in recent decades in the United States will prove instructive.”